The OPEN Act an alternative to SOPA and PIPA

Today the OPEN Act was announced as an alternative to SOPA and PIPA that might be a little less damaging to the internet (via DNS blocking) than anything else we have seen so far. What is interesting is that for once the representatives that are forwarding this compromise act after the uproar over SOPA are asking for input.

Please keep your input clean, and know that there are already amazing piles of laws that have passed that already discuss this same exact issue. It is almost like the Senate and Congress need to reinvent the wheel every two years, but Declan McCullagh has a copy of the laws already in place and laws that we already have to obey over here on his commentary about the OPEN Act.

From appearances (and I am not a lawyer), it looks like there would be a piracy court under the Federal Trade Commission. What we would need on that court is judges that understand technology, or people that the judges trust to help explain the technology to the judges and these advisers need to understand the technology. Those advisors and those judges need to be kept as far away from lobbyists and others that will do everything they can to influence the decision that this court or legal process would entail.

What worries me though about anything like this is the fallout from the last round of seizures where from what I understand two cases have been dropped, even through the sites were seized, shutdown, domains taken over, and the operators left without anything to do with their sites. Techdirt covers the cases very well over on their site.

The problem is that one of the things I noticed about the entertainment industry is that the marketing department, and at times the creators themselves will turn over music, stills, art, or other inside information in order to build buzz around the game. The copyright folks will scan the internet looking for violations, and when found will inform corporate legal. There is nothing that will get a marketing department to say, “I dunno how that got out there” than having a corporate lawyer ask if they released the information. Months later we find out it was the marketing department after the investigation and everything else has happened.

We can do a lot of stuff already, and I am unsure why we need yet another law to protect copyright and trade mark. We need to make sure that the burden of proof is “innocent until proven guilty”. It is easy enough to say that a web site promotes priracy but does it really? If you look at the DaJaz1 web site, it looks like a cluster of bad ideas followed by poor investigation, followed by overreaction, followed by not even a whoops sorry. We need to make sure that no matter what rules are in place that there is due process, and that the site is really all about infringing. OPEN proposes a form of due process, but that FTC court has to be open, has to admit mistakes when they make them, and like any other court, allow for redress of wrongs for wrongful seizure. If I call someone, something they are not it is defamation and they are allowed to sue for compensation. OPEN needs the same schema to make it safe for everyone, and knowing that you can sue someone for damages on both sides of the argument would be a good thing.

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